1989 PLP 1265 (CLC)

8. On the other hand, learned counsel for the respondent contended that the property in dispute was transferred to Sardar Jaswant Singh and Smt. Ram Rakhi through Registered Sale‑deeds dated 15‑6‑1945 and 12‑2‑1947 by Mehr Khan who lost every interest in the property in dispute. The property so became evacuee property and stood vested m Custodian under section 7 of Act XII of 1957. It was contended that it was evidently a hidden evacuee property which remained in possession of Mehr Khan and his successors‑in‑interest without any sanction or declartion by the Custodian. It was contended that the treatment of such property by Custodian or Rehabilitation Authorities was not needed under clause (b) of sub‑clause (2) of Section 3 of the Act XII of 1957.

9. The arguments have been heard at length.

10. The question calling for determination in this case is whether the Deputy Administrator (Residual property) had the authority to decide the dispute pertaining to the nature of the property as to whether it was evacuee property or not. 11. 1t is clear from the examination of Evacuee Laws that the authority to decide the dispute of evacuee nature of property, before the enforcement of Act XIV of 1975 exclusively resided in Custodian under Act XII of 1957. A dispute of such nature could be brought before Custodian in two ways, one was under section 41(ii) of the Act ibid by the civil Court or any other authority where the question arose whether any property was or was not evacuee property, all the authorities were required to refer the question for determination of Custodian. Secondly section 22 of Act XII of 1957 laid down that any person claiming any right or interest in any property treated by Custodian or Rehabilitation Authorities as an evacuee property, had a right to file the petition before the Custodian. The Act XII of 1957 barred any other authority including the civil Court, Rehabilitation Authority or Settlement Authority from examining the question of evacuee nature of the property. This proposition was examined in a number of cases by the Superior Courts.

12. In Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others (PLD 1965 SC 356), it was held that the Settlement Authorities have no powers to decide as to which property should or should not go into the compensation pool or adjudicate whether the property was evacuee property or not.

13. The same principle was highlighted by the Supreme Court in Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) and S. Muhammad Hashim and 9 others v. Dr. S. Muhammad Asghar and another (PLD 1970 SC 326). It is needless to refer any more authorities. It has been a settled law that neither the Settlement Authorities nor the Rehabilitation Authorities have powers to adjudicate upon the dispute in respect of the question that whether a property is an evacuee or not evacuee. This was the position of law before the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act No.14 of 1975.

14. Now I will pass on to examine the question whether the residual authorities appointed under the Act XIV of 1975 to deal with the available properties are competent to examine such questions. The Act XIV of 1975 was enforced on 3‑2‑1975 from a retrospective date i.e. Ist of July, 1974. From the said date all the Evacuee Laws including Act NoXII of 1957 were erased from the statute book. Section 1(2) and section 3 of Act XIV of 1975 are as follows:‑‑ (2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed there under shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. (3) Any proceedings transferred or remanded to any officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate. Section 3. (1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or education trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before the repeal of the aforesaid Act and Regulations, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of section 2, shall stand transferred to the Provincial Government on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal:‑ (a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; xxxxxxxxxxxxxxxxxxxxxxxxxxxx

14. Scheme No.9 was prepared and enforced by the Government under Act XIV of 1975 to dispose of the urban available properties. The available property was defined in the Scheme in following words:‑ 'Available Properties' mean houses, shops, building sites, hotels, Industrial concerns and cinema houses (Whether allotted by the Industries Rehabilitation Board or not) which were available for disposal on and immediately before the first day of July, 1974 or which may thereafter become available for disposal but do not include properties attached to charitable, religious or educational trusts or institutions."

15. Para No.2 of the Scheme provides that the Government may appoint such number of Administrators, Deputy Administrators and such other officers as may be necessary for the performance of functions assigned to them under the Scheme. Para No.3 of the Scheme provides that the Member Board of Revenue may by notification issued from time to time in official Gazette invite applications for the transfer of available properties in para No.6, while para No.5 provides for the scrutiny of such applications.

16. It is very clear from the analysis of the Scheme and Act XIV of 1975 that the residual Authorities have no power to examine and decide the question whether the property is evacuee or not. Their main and only function is to dispose of the available property within the framework of Scheme. 16‑A. I am of the view that after the Repeal Act XII of 1957 the only forum to determine whether a property is available property or not, is the Civil Court and not the Residual Authorities.

17. It is noteworthy that the Settlement Commissioner (Residual Property) had the same view and remarked that application for transfer could not be dealt with until and unless the dispute relating to nature of property was adjudicated. This note was however overlooked by the Deputy Administrator (Residual Property).

18. Reverting to another argument of the learned counsel for the petitioner that the property in dispute was not treated as an evacuee property by the Custodian or Rehabilitation Authority, or by Settlement Authority, by conscious act, I am of the view that the argument has a lot of force. Admittedly the D Registered Sale‑deeds in favour of Sardar Jaswant Singh and Sint. Ram Rakhi dated 15‑6‑1945 and 12‑2‑1947 did not contain the description of the property. The property in dispute and the property described in the aforesaid Registered Sale‑deed appear to be different. The property in dispute was never shown as evacuee property in special Jamabandi. Learned Civil Judge, by judgment and decree dated 11‑1‑1988 in suit between the same parties, who are before this Court in this writ petition, came to the conclusion that it was a Muslim property.

19. In Basara and others v. Khushi Muhammad and others (1985 SCMR 449), it was held that:‑‑ "The meaning and import of the word "treated" was examined by this Court in the case of Abdul Khaliq Abdul Razzaq v. Kishanchand and others (PLD 1964 SC 74) and it was held that "treating" must be by some officer or authority who could control or make use of such property under the Ordinance, namely, Custodian or Rehabilitation Authority. Admittedly nothing of the kind was done in this case. In this connection the learned Settlement Commissioner, Multan in his order dated 16‑6 1966 had recorded a finding of fact as under:‑‑ In the present case the land in dispute was never shown as evacuee property in the special Jamabandi prepared in the year 1947. It continued to be shown as State land which was leased out on tender basis till 1965. It was subsequently included as State land in the schedule of auction and property auctioned on 31‑5‑1955 In the instant case there is neither user of the property nor a consciousness of the actual or assumed nature of the property to show that it was treated as evacuee property at any time upto its allotment to the respondents." Rule laid down in the aforementioned authority is applicable to the case in hand.

20. For the foregoing reasons, I have arrived at the conclusion that the orders passed by respondent No.l dated 25‑1‑988 and 4‑7‑1988 suffer from lack of jurisdiction. I accordingly accept the petition, set aside the order of the learned E Deputy Administrator (Residual Property), Rawalpindi dated 25‑1‑1988 and 4‑7‑1988. This order shall not effect the right of the Residual Authorities to get the matter adjudicated before the Civil Court in respect of the property in dispute. The parties arc left to bear their own costs. AA./I‑115/L Petition accepted.